Lauren Busdon, 19, spoke to the media on Sept. 25, 2017, at the Statehouse in support of Marsy's Law for Idaho. Busdon shared details around how she was treated during her rapist's prosecution, advocating for change. Provided by Strategies 360

Lauren Busdon, 19, spoke to the media on Sept. 25, 2017, at the Statehouse in support of Marsy's Law for Idaho. Busdon shared details around how she was treated during her rapist's prosecution, advocating for change. Provided by Strategies 360

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For a second time, lawmakers in January will propose updating and expanding a set of rights for crime victims already outlined in the state’s constitution. Advocates of the measure argue that it’s a morally necessary step to aid victims who are overlooked in Idaho courtrooms. But as their efforts begin, it’s not clear what adopting the new standards would cost the state, counties and cities, or whether they are capable of carrying them out.

“Through nearly all of the court proceedings in the last five years, I have been treated lesser than my rapist,” Busdon said. “I support strengthening victims’ rights in Idaho’s Constitution to ensure others like me do not have to deal with a similar experience, in what has to be the most difficult time in their life.”

Sen. Todd Lakey and Rep. Brent Crane, both Republicans from Nampa, plan to introduce Marsy’s Law for Idaho during the 2018 session. As a constitutional amendment, Idahoans must also approve the measure in a statewide vote for it to take effect.

Marsy’s Law is a national campaign named after Marsy Nicholas, who was killed by her ex-boyfriend in 1983. One week after she was killed, her murderer was released on bail without her family’s knowledge and confronted her mother and brother.

The changes to Idaho’s crime victim rights, passed in 1994, would include altering a provision that victims have the right to communicate with prosecutors, changing “communicate” to “confer.” Idaho’s Constitution currently defines a victim as “an individual who suffers direct or threatened” physical, financial or emotional harm. Marsy’s Law would change that to “any person or entity directly and proximately harmed.”

Those who work closely with victims in Idaho’s current system say it indeed has problems, including issues just keeping up with heavy caseloads. Organizations such as the Idaho Prosecuting Attorneys’ Association, the Idaho Sheriffs’ Association and the Idaho Fraternal Order of Police have signed on to support the amendment.

Lori Stewart, victim witness coordinator for the Twin Falls County Sheriff’s Office, said bringing victims’ rights to the forefront makes her role easier. She handles about 700 cases a year, including ones that don’t reach the point of criminal charges.

“Victims are thrown into a process by no action of their own,” Stewart said. “The criminal justice system is hard to wade through.”

Aleshea Boals performs the same role for the Canyon County Sheriff’s Office. She handles about 500 cases a year. Particularly in probation and post-conviction hearings, she said, victims are not always given the opportunities they deserve to participate.

“Idaho has absolutely been a leader in crime victims’ rights,” she said. “This is just another step.”

What are the concerns?

The Idaho Coalition against Sexual and Domestic Violence opposed Marsy’s Law last year and will again oppose it this year, said executive director Kelly Miller. The biggest reason is its definition of a “victim,” especially when it comes to victims of sexual assault.

Both Idaho’s current system and Marsy’s Law establish rights only for victims whose cases reach the point of criminal charges. State and federal data consistently show that the actual number of victims of reported crimes is far greater. Between 2009 and 2015, for example, only 24 percent of reported sex crimes on average resulted in an arrest in Idaho, according to a report from Idaho State Police and the Idaho Statistical Analysis Center. In that same time frame, only 49 percent of reported violent offenses resulted in an arrest.

Miller provides services to many of those victims whose cases don’t necessarily reach court. She fears Marsy’s Law will have an unintended side effect, taking limited resources away from that wider pool of victims.

She also questions why an “entity” qualifies as a victim. “Are we talking about large corporations that could be taking up time and resources?” she asked.

Kathy Griesmyer, policy director for the American Civil Liberties Union of Idaho, said she fears Marsy’s Law could potentially backlog Idaho’s courts, overload judges and and force resentencing hearings or new trials in closed cases. The latter, she said, actually might harm victims forced to retell their stories.

She’s also concerned the law would give victims more rights than those criminal defendants are entitled to through the Sixth Amendment, causing a new imbalance.

Carlie Foster, a lobbyist promoting Marsy’s Law for Idaho, said the proposed definition of a victim is the same as that used by the federal Crime Victims’ Rights Act and in other states. The federal law does not use the word “entity,” however.

“In the other states that have enacted similar language, there has not been any evidence that the definition has created any additional meaningful burden on the court system,” she said. “Opponents try to claim that it will be an issue, but have not brought forth any data that supports their presumptions.”

The proposed law, she said, is intended to give victims the same rights as defendants.

“The focus is on all victims, and not singling out one group of victims over another,” she said.

The cost question

As a constitutional amendment, Marsy’s Law must first clear both Idaho’s House and Senate with two-thirds or more of the vote. It would then be put before Idaho voters, needing a simple majority of votes to pass.

Several other states that passed Marsy’s Law in their legislatures saw issues on the ballot — largely over questions of its cost.

In North Dakota in 2016, for example, there were complaints about the length and ambiguity of the ballot measure, according to the Grand Forks Herald. The North Dakota Office of Management and Budget estimated the law would cost millions of dollars to implement, the Herald reported, but supporters of the law considered the costs inflated. Last week, a panel of lawmakers heard from a police official who said the law had a minimal impact on operations. A county prosecutor described higher workloads, concern about notifying victims in a timely manner, and the potential for situations where a case could be dismissed because a victim refuses to be identified to a defendant, according to The Associated Press.

The Montana Supreme Court put that state’s version of Marsy’s Law on hold earlier this year while an ACLU lawsuit proceeds. The ACLU argues Marsy’s Law was unconstitutional when it passed last fall because it did not adequately inform voters about its costs, according to the Missoulian. Montana lawmakers placed new restrictions on it this spring, including limits on what kinds of cases it applies to.

The public push by Idaho lawmakers and lobbyists for Marsy’s Law started weeks ago, but the proposal does not yet have a formal cost estimate. One is underway and will reportedly take into account the financial effects on Idaho counties and cities, beyond just the state budgets the Legislature deals with. Most law enforcement agencies, prosecutors and victim-witness coordinators are paid through city and county funding.

The version of Marsy’s Law that Lakey introduced in 2017 included a note asking for $205,000 from the general fund for costs related to holding a statewide vote on the measure. It was relatively vague around how it would impact local agencies, noting “some increased costs” tied to notifying victims of court proceedings, and more time possibly needed for hearings during which victims want to speak or that are pushed back due to improper notice.

That measure passed the Idaho Senate but was voted down 10-5 in the House State Affairs Committee after a three-day hearing. Rep. Heather Scott, R-Blanchard, said on Facebook the bill “was sold as an amendment to ‘help the victims’ but there were major issues with the language and the unintended consequences,” according to The Spokesman-Review.

Can existing tool make Marsy’s Law work?

Key to the Marsy’s Law pitch is the Victim Identification and Notification Everyday network, which Idaho already uses at several levels to notify victims of changes in their cases. The network, commonly called VINE, can include things like the dates of upcoming court appearances and when an offender will be released from incarceration.

The VINE system interfaces with all 36 jails in the state and the Idaho Supreme Court. It costs about $500,000 a year, paid for by a $15 fee assessed when a person is convicted and sentenced for a crime, said Vaughn Killeen, executive director of the Idaho Sheriffs’ Association.

It does not, however, connect to Idaho’s Commission of Pardons and Parole. That office has a responsibility to notify victims of upcoming parole hearings, when decisions are made and when an inmate’s release date is set, said Executive Director Sandy Jones. Victims also must be told if an inmate escapes, changes location or dies.

The commission does that manually because it has no automated system for victims to sign up for such notices, and VINE includes prison release dates but is not set up for parole hearing dates. For the manual notifications, the parole commission relies on county prosecutors to pass along updated victim contact information; that approach isn’t “foolproof,” Jones said.

“The concern is what happens if we miss them?” Jones said. “You can’t un-parole someone, and then if we find out there was someone who wanted to be involved, what do we do?”

Foster maintains VINE would be an adequate tool to address Jones’ concerns. And if a victim fails to give the state their contact information, she said, agencies like the parole commission wouldn’t be held accountable. Marsy’s Law would only require reasonable and timely notification, she said.

The 2017 legislation says VINE could handle “some of the additional notices.”

Jones also worries about caseload. Her commission has one victim coordinator, paid $39,436 annually plus benefits, who is responsible for all notifications, but is also responsible for sitting with and supporting victims during parole hearings. The coordinator gets help from a technical records specialist, a position that was just funded last year and is paid $28,412 annually, plus benefits.

Over five years from 2013-17, about 455 violent offenders with victims who needed the coordinator’s attention were eligible for parole each year. That includes inmates serving time for murder, manslaughter, and sex and assault crimes.

If Marsy’s Law expands the definition of “victim” to include financial and property crimes, Jones said, the coordinator would have had to take on another 322 offenders’ cases a year. She would need to ask the Legislature to fund at least one more coordinator.

“IDOC is reviewing the legislation,” said agency Director Henry Atencio. “While we support victims and their right to be heard throughout the criminal justice system, we need to ensure that our department will have the necessary resources to comply with the proposed changes.”

The ACLU’s Griesmyer argues Idaho already can’t meet its obligations for judicial rights, specifically when it comes to public defense. The ACLU successfully sued the state in 2015 over inadequate public defense, a problem that still has not been fully remedied due to public defenders’ caseloads and a lack of funding for their offices.

“Victims’ rights and an adequately funded public defense system are two very different things,” Foster said in response. “It’s also critical to understand that Marsy’s Law has no impact whatsoever on the long-held rights of defendants. Instead, Marsy’s Law for Idaho is about giving victims what they deserve, more notification of important events in the justice system and a stronger voice.

“Is it fair for victims to continue to be left on the legal system’s sidelines just because the state and organizations are trying to also fix the public defense system? We don’t think so.”